Court Considers Use Of Lie Detector Tests As Evidence

Both men were convicted of felonies in which the lives of others were threatened.

Both men passed polygraph examinations, sometimes called ``lie detector tests,'' in which each swore he had nothing to do with the crime that sent him to prison.

Now arsonist Christian Porter of Norwich and robber Russell Hunter of Waterbury are asking the state Supreme Court to do what has never been done in the legal history of Connecticut -- allow polygraph results to be used as evidence in criminal trials.

The justices Tuesday conveyed their skepticism.

``You're essentially saying we would have an array of polygraph testimony about every witness on each side of the case,'' Chief Justice Robert J. Callahan said to attorney M. Hatcher Norris, who represents Porter.

Norris and Richard Marano, representing Hunter, argued their clients' constitutional right to defend themselves was violated when their polygraph results were barred.

The two cases, argued Tuesday before all seven justices of the state Supreme Court, could prompt the high court to revise the standard used for admitting scientific evidence and testimony, not just polygraphs. The court also could revise the evidence standard and continue the ban on polygraph evidence.

More than 70 years have passed since the U.S. Supreme Court first rejected use of a lie detector test -- then measured by blood pressure variations -- in the 1923 case of Frye vs. United States. The Frye case laid down the ``general acceptance'' rule for admissibility of scientific evidence that prevails to this day in many jurisdictions, including Connecticut.

State-of-the-art DNA evidence of ``genetic fingerprinting'' has met this standard; polygraph examinations, almost without exception, have not.

A key distinction between DNA evidence and polygraph results is that DNA evidence takes judges and jurors into an area they cannot see for themselves -- the microscopic and unique genetic codes in bodily fluids such as blood, semen and saliva, which can provide crucial evidence in a criminal trial. The reliability of DNA identification has been statistically proved.

A polygraph test, however, is directed solely at the credibility of the witness or defendant. Determining credibility has always been the function of the judge or jury, based on the evidence and testimony presented at trial.

The justices said that permitting polygraph evidence would clog the criminal justice system with hearings on the proficiency of polygraph examiners and the reliability of their results.

``Juries don't need experts to tell them who's telling the truth and who's not,'' Justice Joette Katz said Tuesday. ``Do we then get into experts on body language?''

New London State's Attorney Kevin T. Kane, who prosecuted Porter, urged the justices to rule that polygraphs are ``just flat-out not admissible.''

In 1993, a product liability case revolutionized the standard for admissibility of scientific evidence.

In Daubert vs. Merrell Dow Pharmaceuticals Inc., the U.S. Supreme Court tossed aside Frye in deference to federal rules of evidence, stating a judge may allow any scientific evidence or testimony that ``will assist the trier of fact to understand the evidence or to determine a fact in issue.''

The U.S. Supreme Court's ruling in Daubert governs federal cases; state appellate courts are free to adopt their own standards or adhere to Frye.

In each of the two cases presented Tuesday to the state Supreme Court, the polygraph examinations were administered by men with longstanding reputations in the trade.

Porter was convicted of torching a home he and his wife had spent a year renovating. Testimony revealed the house was under-insured, that Porter and his wife had an excellent credit rating, and that Porter wept hysterically as he tried to extinguish the blaze with a garden hose.

However, Porter was the only one to revisit the house not once, but twice, in the half-hour between the time when smoke prompted his wife and baby to seek refuge at a neighbor's home, and when Porter noticed his home fully engulfed in flames. Arson investigators determined the fire started in three locations. Porter did not testify at his trial.

Hunter was convicted of first-degree robbery of Morcey's Restaurant in Waterbury. Two people in the restaurant at the time of the robbery on Dec. 6, 1992, identified Hunter from an array of photos shown to them by Waterbury police. Hunter testified on his own behalf, but jurors also learned he had numerous criminal convictions. The testimony of Hunter's only alibi witness was impugned at trial.

Hunter was sentenced to serve nine years in prison; Porter was sentenced to 12.

Even under the standard set in Daubert, Connecticut prosecutors argued Tuesday, polygraph evidence must be shown to be both reliable and relevant.